France - Court of Cassation, Decision No. 1130 FS-P+B+R+I, 27 September 2017

Country of Decision:
Country of Applicant:
Date of Decision:
27-09-2017
Citation:
No. 1130 FS-P+B+R+I
Court Name:
Court of Cassation, 1st Civil Chamber
National / Other Legislative Provisions:
France - Cesda (Code of Entry and Stay of Foreigners and Asylum Law L 511-1
Printer-friendly versionPrinter-friendly version
Headnote: 

An applicant may not be detained with a view to carrying out a transfer under the Dublin Regulation, in the absence of objective criteria for assessing the existence of a significant risk of absconding, defined in a binding legal provision of general application.

Facts: 

The applicant was detained in the administrative detention centre (CRA) of Mesnil-Amelot, pending his transfer to Italy under the Dublin Regulation under an order of the Prefecture dated 13 February 2017. Detention was ordered on the ground that he had not presented appropriate guarantees to prevent the risk of absconding from the removal procedure. To prolong the detention, an order of the President of the Court of Appeal of Paris dated 17 February 2017 stated that the applicant’s detention fulfils the necessary legal conditions, insofar as he had not provided proof of accommodation or resources.

The cassation appeal (pourvoi en cassation) contests the order of the President of the Court of Appeal of Paris.

Decision & Reasoning: 

The Court of Cassation recalled that the power conferred on EU Member States to detain an individual for the purpose of securing a Dublin transfer where there is a significant risk of absconding entails the existence of reasons, grounded on objective criteria defined by law, to believe that the asylum seeker will abscond from the transfer procedure. The Court of Justice of the European Union (CJEU) ruled in Case C-528/15 Al Chodor that Member States must set such objective criteria in binding legal provisions of general application, and that the absence of such provisions precludes the applicability of this power under Article 28(2) of the Dublin Regulation; consistent administrative practice of the aliens police would not suffice to that end.

The Court concluded that, by upholding the applicant’s detention in the absence of a provision of general application setting out the objective criteria for assessing a risk of absconding of a person subject to a transfer procedure, the President of the Court of Appeal of Paris violated Article 28(2) of the Dublin Regulation.

Outcome: 

Court of Appeal order quashed (cassation).

Observations/Comments: 

French legislation currently does not provide for a definition of the “risk of absconding” on the basis of objective criteria. However, a Ministry of Interior instruction of 19 July 2016 to Prefectures – the authorities responsible for the application of the Dublin Regulation – refers to the notion of “risk of absconding” in the context of Dublin transfer procedures and allows for the possibility to place persons concerned in administrative detention. The instruction sets out two criteria as indicative of such a risk: (a) the individual has left the place where he or she is required to reside; (b) the individual has not appeared following several summons (convocations) to an interview or has not respected reporting obligations in the context of assigned residence in a specific place (assignation à résidence).